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Smallwood v. T&A Farms

United States District Court, S.D. Georgia

March 21, 2017




         Plaintiff John Smallwood's motion to disqualify Defendants' attorney, Huey Spearman, will be DENIED, but Spearman must file Defendants' waiver of his potential conflict of interest as to cross-examination of John's wife Sheila ("Sheila"). Dkt. No. 87.


         The Court assumes the truth of the facts Smallwood's motion alleges. Sheila divorced from her ex-husband on October 16, 2006, pursuant to an order prepared by Spearman, who was her attorney. Dkt. No. 87-1. While representing Sheila in the divorce, "Spearman learned confidential information about [her] finances, relationships, children, character, education level, job history, and sexual history." Dkt. No. 87 at 7.

         Spearman now represents Defendants, who are Smallwood's former employers, in this race-discrimination suit. That suit was filed October 28, 2014. Dkt. No. 1. Sheila will be a substantive witness in this case. Dkt. No. 87 at 2. Smallwood alleges, among other things, that Defendants fired Sheila after one of them called her a racial epithet. See Smallwood v. T&A Farms, No. 5:14-CV-87, 2017 WL 150504, at *4 (S.D. Ga. Jan. 13, 2017). On January 13, 2017, this Court denied Defendants' motion for summary judgment. Dkt. No. 82.

         Smallwood filed the present motion on March 15, 2017. Dkt. No. 87. His attorneys just learned of Spearman's prior representation of Sheila, as Spearman did not disclose it to them, Defendants, or the Court, and Sheila herself did not know she could seek his disqualification. Id. at 2-3. Spearman responded by claiming he had no idea Sheila (whose name has changed) was his former client until the present motion. Dkt. No. 88 at 2. He denies knowing or remembering any confidential information about her that could be used here. Id. at 3.


         Motions to disqualify are governed by this Court's local rules and federal common law. Hermann v. GutterGuard, Inc., 199 F.App'x 745, 752 (11th Cir. 2006) (per curiam); see also Schlumberqer Techs., Inc. v. Wiley, 113 F.3d 1553, 1561 (11th Cir. 1997) ("The court must clearly identify a specific Rule . . . applicable to the relevant jurisdiction and must conclude that the attorney violated that rule . . . ."). Local Rule 83.5(d) incorporates the Georgia Rules of Professional Conduct.

         "[A]ny doubts as to the existence of a violation of the rules should be resolved in favor of disqualification." Jones v. InfoCure Corp., No. 1:01CV2845, 2003 WL 22149656, at *2 (N.D.Ga. May 13, 2003) (citation omitted) (alteration in original). But the movant "bears the burden of proving the grounds for disqualification, " and "the mere appearance of impropriety is no longer grounds." Hermann, 199 F.App'x at 752; Herrmann v. GutterGuard, Inc., No. 1:04-CV-0365, 2005 WL 6076877, at *8 (N.D.Ga. Dec. 21, 2005) (Carnes, J.). Disqualification is disfavored, as it is "a harsh sanction, often working substantial hardship on the client, especially in cases . . . where extensive discovery and trial preparation have been completed." Norton v. Tallahassee Memorial Hosp., 689 F.2d 938, 941 n.4 (11th Cir. 1982). It "interferes with this choice of counsel and causes expense and delay that are costly both to the client and the administration of justice." Herrmann, 2005 WL 6076877 at *8. Hence, it is granted only "sparingly." Norton, 689 F.2d at n.4.


         Smallwood's motion will be denied. He raises two Georgia Rules: 1.6 and 1.9. See generally Dkt. No. 87. Neither requires Spearman's disqualification, but Rule 1.6 does require Defendants' waiver of his use of confidential information in cross-examining Sheila.


         Rule 1.6 does not require disqualification here, but rather, a waiver from Defendants. Rule 1.6(a) requires lawyers to "maintain in confidence all information gained in the professional relationship with a client." Smallwood argues that Spearman would violate Rule 1.6 by cross-examining Sheila, especially as to her credibility. Dkt. No. 87 at 5. This is certainly "a potential conflict of interest." Liqhtbourne v. Duqqer, 829 F.2d 1012, 1023 (11th Cir. 1987) (per curiam) ("An attorney who cross-examines a former client inherently encounters divided loyalties."); see also Porter v. Wainwriqht, 805 F.2d 930, 939 (11th Cir. 1986) ("[Complainant] asserts that [his attorney] was forced to choose between discrediting his former client through information learned in confidence, or foregoing vigorous cross-examination .... If true, these assertions would suffice to demonstrate an actual conflict of interest."). But Defendants can retain Spearman even knowing that he "is precluded from using some potentially critical information" in cross-examining Sheila. Herron v. Chisolm, No. CV412-041, 2012 WL 6645643, at *5 (S.D. Ga. Dec. 19, 2012). Such a waiver "must be an informed decision, " so "the Court will require [Spearman] to bring this matter to [Defendants' ] attention and have them state in writing that they understand and accept the risk." Id. (emphasis added).

         II. RULE 1.9 DOES NOT ...

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